Citation Nr: 0021360
Decision Date: 08/14/00 Archive Date: 08/23/00
DOCKET NO. 99-06 420 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUES
1. Entitlement to an evaluation in excess of 10 percent for
postoperative residuals of an umbilical hernia.
2. Entitlement to a compensable evaluation for postoperative
residuals of excision of an osteochondroma of the left
humerus.
3. Entitlement to an evaluation in excess of 10 percent for
residuals of burn scars to the neck.
4. Entitlement to an evaluation in excess of 10 percent for
post-traumatic stress disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
D. M. Fogarty, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1968 to
December 1971.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a July 1998 rating decision from the Department
of Veterans Affairs (VA) Regional Office (RO) in Denver,
Colorado.
For reasons that will become apparent, the issue of
entitlement to an evaluation in excess of 10 percent for
post-traumatic stress disorder (PTSD) will be addressed in
the REMAND portion of this decision.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's appeal.
2. Postoperative residuals of an umbilical hernia are
manifested by slight tenderness of the scar on palpation,
with no tissue loss, inflammation, disfigurement, limitation
of skin motion, ulceration, or breakdown of the skin and no
hernia recurrence.
3. An April 1998 VA examination report noted a diagnosis of
osteochondroma excision of the left humerus with no
residuals.
4. The veteran's left humerus scar was described as striae
in appearance with depression and minimal tissue loss,
without adhesions, keloids, edema, inflammation, tenderness,
ulceration, breakdown of the skin, disfigurement, or
limitation of skin movement.
5. Residuals of burn scars to the neck are described as pale
pink with some adherence of the skin when manipulating in all
directions, without tenderness on palpation, tissue loss, or
edema. One scar was noted as red with irritation but no
discharge.
6. An April 1998 VA mental examiner described the veteran's
neck burn scars as moderately disfiguring.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 10 percent
for postoperative residuals of an umbilical hernia have not
been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R.
§ 4.114, Diagnostic Code 7338 (1999); 38 C.F.R. § 4.118,
Diagnostic Code 7804 (1999).
2. The criteria for a compensable evaluation for
postoperative residuals of excision of an osteochondroma of
the left humerus have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.71a, Diagnostic Codes 5201, 5202
(19990; 38 C.F.R. § 4.118, Diagnostic Codes 7804, 7805
(1999).
3. The criteria for an evaluation in excess of 10 percent
for residuals of burn scars to the neck have not been met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.118,
Diagnostic Codes 7800, 7801 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Factual Background
Service medical records reflect that upon induction
examination dated in January 1968, the veteran's systems were
clinically evaluated as normal with the exception of
bilateral Osgood-Schlatter's disease in the knees. Clinical
records reflect that in January 1969, the veteran suffered
first and second degree burns to his face and neck. It was
noted the veteran was hospitalized with an uneventful
recovery. Subsequent clinical records note the burns were
healing well, although some swelling under the burns was
noted. A June 1969 clinical record noted one scar was still
sensitive, slightly tender, and red. A July 1969 clinical
record noted the scars were keloidal and slightly tender,
requiring plastic revision. A September 1969 record notes
that three keloid scars to the right anterior neck showed no
response to steroid injection. The veteran underwent
surgical excision of the keloid in September 1969. Dense
keloidish scar tissue was noted. In December 1969, the
veteran underwent double Z-plasty revision of the neck scars.
The incision was noted as well healed in February 1970.
In August 1971, the veteran underwent excision of
osteochondroma of the left humerus. Physical examination of
the left humerus on admission revealed a palpable exostosis
of two by three centimeters. Distal sensation, circulation
and motor function were noted an intact. A November 1971
clinical record reflects an impression of an umbilical
hernia. The veteran underwent exploration of the umbilical
area and revision of the hernia well. Upon separation
examination dated in November 1971, the veteran's systems
were clinically evaluated as normal, with the exception of an
incarcerated umbilical hernia and multiple scarring on the
neck and chest.
Upon VA examination dated in February 1977, the examiner
noted two burn scars on the anterior neck extending on to the
chest. The scars were noted as nine centimeters by two
centimeters and five centimeters by two centimeters. There
was no loss of underlying tissue. The scars were noted as
disfiguring. An impression of residual scars of full
thickness burns to the anterior neck, disfiguring, was noted.
Upon VA examination dated in September 1972, the examiner
noted three scars in the neck area as well healed, non-
tender, not keloidal, and not adherent. There was no loss of
underlying tissue. The scars were noted as slightly
disfiguring. The examiner also noted a well-healed scar just
below the umbilicus and no recurrence of an umbilical hernia.
It was noted the removal of the osteochondroma of the left
humerus remained asymptomatic. A well-healed, nonsensitive,
and non-adherent scar was noted over the medial and upper
portion of the arm. No irregularities were felt along the
humerus. It was noted the veteran was right-handed.
Relevant diagnoses of burns of the neck and postoperative
umbilical herniorrhaphy were noted.
In a January 1973 rating decision, the RO granted entitlement
to service connection for residual burn scars to the neck,
evaluated as 10 percent disabling, effective December 21,
1971. The RO also granted entitlement to service connection
for postoperative residuals of an umbilical hernia and
postoperative residuals of excision of osteochondroma of the
left humerus, each evaluated as noncompensable, effective
December 21, 1971.
In an April 1977 letter, the RO indicated that the evidence
did not warrant a change in the disability evaluation of the
veteran's scars.
A November 1997 VA outpatient treatment record notes an
impression of keloid scars on the neck.
Upon VA general medical examination dated in April 1998, the
veteran complained of weakness and throbbing pain in his left
arm. It was also noted that he had to hold his arms in a
certain position for extended periods of time in his
occupation of court stenographer and this aggravated
arthritis in his neck. He reported sometimes feeling
tenderness in his abdomen where the umbilical hernia was
repaired. The veteran noted that he was taking medication
for high cholesterol and it aggravated the skin around his
neck, making it more sensitive to sunlight. Wearing tight
shirts and shaving were also noted to aggravate the skin on
his neck. Physical examination revealed a three-centimeter
horizontal scar on the distal umbilicus. The scar was noted
as well-healed, without adhesions, and skin colored. Slight
tenderness on palpation was noted. There was no tissue loss,
inflammation, edema, disfigurement, limitation in skin
movement, ulceration, or breakdown of the skin. The scar was
noted as slightly elevated.
The examiner noted an eleven-centimeter by two-centimeter
scar running vertically under the left arm. It was noted as
striae in appearance with depression and minimal tissue loss.
It was noted as lighter than normal skin color. The examiner
noted no adhesions, no keloids, edema or inflammation, no
tenderness, no ulceration or breakdown of the skin, no
disfigurement, and no limitation of skin movement.
On the upper chest, the examiner noted vertical scars having
a "z" type appearance starting at the lower neck on the
right side of the chest. Vertical scar lengths were noted as
1.5 centimeters, 2 centimeters, 1 centimeter, .5 centimeters,
2 centimeters, and 3.5 centimeters. The scars were noted as
pale pink. Two scars running horizontally through the
vertical scars were noted as 3.5 centimeters and 5
centimeters and pink. On the left side of the lower neck
there was a 3.5 centimeter slightly curved pink scar with
puckering of the skin. There was some adherence of the skin
when manipulating the skin in all directions. The 1.5
centimeter scar was noted as red with irritation but no
discharge. There was no irritation noted on the other scars.
There was no tenderness on palpation. The scars were
elevated. The examiner noted no tissue loss and no edema.
The scars were described as noticeable. The examiner noted
the initial injury was from third degree burns. Radiology
reports revealed a normal left humerus and degenerative disc
disease at the levels of C4-5 and C5-6. Relevant diagnoses
of umbilical hernia repair with no residuals; osteochondroma
excision of the left humerus with no residuals; burn scars of
the neck with disfigurement; and degenerative disc disease of
the cervical spine were noted.
An April 1998 VA mental examination describes the veteran's
burn scars as moderately disfiguring.
Pertinent Law and Regulations
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. § Part 4 (1999). The percentage ratings contained
in the Rating Schedule represent, as far as can be
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1
(1999). Separate diagnostic codes identify the various
disabilities. In determining the disability evaluation, VA
has a duty to acknowledge and consider all regulations which
are potentially applicable based upon the assertions and
issues raised in the record and to explain the reasons and
bases for its conclusions. Schafrath v. Derwinski, 1 Vet.
App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1
and 4.2 (1999) which require the evaluation of the complete
medical history of the claimant's condition. These
regulations operate to protect claimants against adverse
decisions based on a single, incomplete, or inaccurate
report, and to enable VA to make a more precise evaluation of
the level of the disability and of any changes in the
condition. Schafrath, 1 Vet. App. at 593-94 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999).
I. Postoperative Residuals of an Umbilical Hernia
Pursuant to 38 C.F.R. § 4.20 (1999), when a disability is not
found with the rating schedule, it is permissible to rate
under a closely related disease or injury in which not only
the functions affected, but the anatomical localization and
symptomatology are closely analogous. The rating criteria do
not specifically provide for an umbilical hernia. However,
diagnostic criteria are provided for an inguinal hernia.
An inguinal hernia is rated pursuant to 38 C.F.R. § 4.114,
Diagnostic Code 7338, which provides for a noncompensable
evaluation for a small reducible hernia or without true
hernia protrusion. A noncompensable evaluation is also
warranted for a hernia that is not operated but remediable.
A postoperative recurrent hernia readily reducible and well
supported by truss or belt warrants a 10 percent evaluation.
A 30 percent evaluation is warranted for a small
postoperative recurrent hernia or unoperated irremediable
hernia not well supported by truss or not readily reducible.
A large postoperative recurrent hernia not well supported
under ordinary conditions and not readily reducible,
considered inoperable, warrants a 60 percent evaluation. See
38 C.F.R. § 4.114, Diagnostic Code 7338 (1999). However, the
record reflects no evidence of recurrence of the veteran's
umbilical hernia. The April 1998 VA examiner noted a
relevant diagnosis of umbilical hernia repair with no
residuals. Thus, application of the aforementioned
diagnostic criteria would not warrant assignment of an
evaluation higher than the currently assigned 10 percent.
The rating criteria further provide that scars which are
superficial, painful and tender on objective demonstration
warrant a 10 percent evaluation. See 38 C.F.R. § 4.118,
Diagnostic Code 7804. A 10 percent evaluation is the highest
disability rating provided under this diagnostic code. The
medical evidence of record reflects a well healed scar with
no adhesions upon VA examination dated in April 1998. The
examiner noted only slight tenderness on palpation. There
was no tissue loss, inflammation, disfigurement, limitation
of skin motion, ulceration, or breakdown of the skin. These
findings are consistent with the September 1972 VA
examination report which notes a well-healed scar with no
recurrence of an umbilical hernia. Thus, based upon the
evidence of record, the Board finds no basis upon which to
award an evaluation higher than the currently assigned 10
percent.
II. Postoperative Residuals of Excision of an Osteochondroma
of the Left Humerus
The veteran's postoperative residuals of excision of an
osteochondroma of the left humerus is currently evaluated as
noncompensable pursuant to 38 C.F.R. § 4.118, Diagnostic Code
7805, which provides that scars will be rated on limitation
of function of the part affected.
Limitation of motion of the arm is contemplated by 38 C.F.R.
§ 4.71a, Diagnostic Code 5201. The rating schedule provides
that a 20 percent evaluation is warranted for limitation of
motion of the minor arm at shoulder level. A 20 percent
evaluation is also warranted for limitation of motion of the
minor arm midway between the side and shoulder level.
Limitation of motion of the minor arm to 25 degrees from the
side warrants a 30 percent evaluation. Handedness for the
purpose of a dominant rating will be determined by the
evidence of record, or by testing on VA examination. Only
one hand shall be considered dominant or major. The April
1998 VA examination noted the veteran as right-handed. Thus
his disability involves his minor extremity. See 38 C.F.R.
§ 4.69 (1999). However, the record is silent for any
limitation of motion of the veteran's left arm. Thus,
application of 38 C.F.R. § 4.71a, Diagnostic Code 5201 would
not warrant the assignment of a compensable evaluation.
Impairment of the humerus is contemplated by 38 C.F.R.
§ 4.71a, Diagnostic Code 5202, which provides for compensable
evaluations for moderate or marked deformity from malunion of
the humerus, recurrent dislocation of the humerus, fibrous
union of the humerus, nonunion of the humerus, and loss of
the head of the humerus. See 38 C.F.R. § 4,71a, Diagnostic
Code 5202 (1999). However, the record is silent for any
evidence of deformity, dislocation, nonunion, fibrous union
or loss of the head of the humerus. Thus, contemplation of
38 C.F.R. § 4.71a, Diagnostic Code 5202 is also not
warranted.
The April 1998 VA examination report noted a diagnosis of
osteochondroma excision of the left humerus with no
residuals. This finding is consistent with the September
1972 VA examiner's finding that the removal of the
osteochondroma remained asymptomatic. The record is silent
for any evidence suggesting that the scar is tender or
painful on objective demonstration. Thus, contemplation of
38 C.F.R. § 4.118, Diagnostic Code 7804, previously set
forth, is also not warranted.
The Board recognizes that the veteran has complained of
weakness and throbbing pain in his left arm. However, those
complaints have not been attributed to the postoperative
residuals of excision of an osteochondroma of the left
humerus by any medical opinions of record. The most recent
medical examination noted no adhesions, keloids, edema,
inflammation, tenderness, ulceration, breakdown of the skin,
disfigurement, or limitation of skin movement. The scar was
noted as striae in appearance with depression and minimal
tissue loss. In light of the aforementioned evidence, the
Board finds no basis upon which to assign a compensable
evaluation for postoperative residuals of excision of an
osteochondroma of the left humerus.
III. Residuals of Burn Scars to the Neck
The veteran's residuals of burn scars to the neck are
currently evaluated as 10 percent disabling pursuant to
38 C.F.R. § 4.118, Diagnostic Code 7800.
Disfiguring scars of the head, face, or neck that are slight
warrant a noncompensable evaluation. A 10 percent evaluation
is warranted for moderately disfiguring scars. Scars which
are severe, especially if producing a marked or unsightly
deformity of the eyelids, lips, or auricles warrant a 30
percent evaluation. A 50 percent evaluation is warranted for
complete or exceptionally repugnant deformity of one side of
the face or marked or repugnant bilateral disfigurement. The
rating code further provides that when in addition to tissue
loss and cicatrization, there is marked discoloration, color
contrast, or the like, the 50 percent evaluation may be
increased to 80 percent, the 30 percent to 50 percent, and
the 10 percent to 30 percent. See 38 C.F.R. § 4.118,
Diagnostic Code 7800.
The evidence of record reflects the veteran's neck burn scars
are pale pink with some adherence of the skin when
manipulating in all directions. The April 1998 VA general
medical examiner noted no tenderness on palpation, no tissue
loss, and no edema. One scar was noted as red with
irritation but no discharge. The examiner described the
scars as noticeable. The April 1998 VA mental examiner
described the scars as moderately disfiguring. Previous
examinations had noted the scars as disfiguring or slightly
disfiguring. As there is no medical evidence of severe
disfiguring scars producing marked or unsightly deformity, an
evaluation in excess of 10 percent is not warranted.
Furthermore, an additional 20 percent evaluation is not
warranted, as the record shows no tissue loss or marked
discoloration.
The Board recognizes that third degree burn scars are also
contemplated by 38 C.F.R. § 4.118, Diagnostic Code 7801,
which provides that scars in an area or areas exceeding 6
square inches warrant a 10 percent evaluation. A 20 percent
evaluation is warranted for an area or areas exceeding 12
square inches. An area or areas exceeding one-half square
foot warrants a 30 percent evaluation. A 40 percent
evaluation is warranted for an area or areas exceeding one
square foot. See 38 C.F.R. § 4.118, Diagnostic Code 7801.
However, there is no evidence to suggest that the veteran's
neck burns cover an area or areas exceeding 12 square inches.
Thus, application of 38 C.F.R. § 4.118, Diagnostic Code 7801,
would not warrant assignment of an evaluation in excess of 10
percent.
ORDER
Entitlement to an evaluation in excess of 10 percent for
postoperative residuals of an umbilical hernia is denied.
Entitlement to a compensable evaluation for postoperative
residuals of excision of an osteochondroma of the left
humerus is denied.
Entitlement to an evaluation in excess of 10 percent for
residuals of burn scars to the neck is denied.
REMAND
The veteran is seeking entitlement to an evaluation in excess
of 10 percent for PTSD. A review of the record reflects that
an April 1999 private psychological evaluation was sent to
the Board by facsimile in August 1999. The evaluation report
appears to be relevant to the veteran's claim for an
increased rating for PTSD. A review of the record reflects
that this evidence has not been reviewed by the RO. Any
pertinent evidence submitted by the veteran that is accepted
by the Board must be referred to the agency of original
jurisdiction for review and preparation of a Supplemental
Statement of the Case unless this procedural right is waived
in writing by the veteran. See 38 C.F.R. § 20.1304(c)
(1999). A review of the claims folder indicates that no such
waiver has been received.
Additionally, the record reflects the veteran was last
afforded a VA psychiatric examination in April 1998. As the
veteran contends that his PTSD symptoms have worsened, the
Board is of the opinion that additional development of the
record is needed to enable the Board to render a final
determination. Colvin v. Derwinski,
1 Vet. App. 171 (1991).
Accordingly, the case is REMANDED to the RO for the following
development:
1. The RO should contact the veteran and
ask that he provide the names and
addresses of all health care providers
from whom he has received treatment for
his PTSD since April 1999. After
obtaining the necessary permission from
the veteran, copies of any available
records that are not already of record
should be obtained and associated with
the claims folder.
2. The RO should also arrange for the
veteran to receive a psychiatric
examination. The examiner should
identify all associated symptomatology or
manifestations of the veteran's service-
connected PTSD. Any necessary special
studies should be accomplished. The
examiner is asked to express an opinion
with respect to which of the following
criteria best describes the veteran's
psychiatric disability picture due solely
to his service-connected PTSD:
(a) Occupational and social impairment
due to mild or transient symptoms which
decrease work efficiency and ability to
perform occupational tasks only during
periods of significant stress, or;
symptoms controlled by continuous
medication; or
(b) Occupational and social impairment
with occasional decrease in work
efficiency and intermittent periods of
inability to perform occupational tasks
(although generally functioning
satisfactorily, with routine behavior,
self-care, and conversation normal), due
to such symptoms as: Depressed mood,
anxiety, suspiciousness, panic attacks
(weekly or less often), chronic sleep
impairment, and mild memory loss; or
(c) Occupational and social impairment
with reduced reliability and productivity
due to such symptoms as: Flattened
affect; circumstantial, circumlocutory,
or stereotyped speech; panic attacks more
than once a week; difficulty in
understanding complex commands,
impairment of short and long-term memory;
impaired judgment; impaired abstract
thinking; disturbances of motivation and
mood; and difficulty in establishing or
maintaining effective work and social
relationships; or
(d) Occupational and social impairment
with deficiencies in most areas, such as
work, school, family relations, judgment,
thinking, mood, due to such symptoms as:
suicidal ideation; obsessional rituals
which interfere with routine activities;
speech intermittently illogical, obscure,
or irrelevant; near-continuous panic or
depression affecting the ability to
function independently, appropriately and
effectively; impaired impulse control
(such as unprovoked irritability with
periods of violence); spatial
disorientation; neglect of personal
appearance and hygiene; difficulty in
adapting to stressful circumstances
(including work or a work-like setting);
and the inability to establish and
maintain effective relationships; or
(e) Total occupational and social
impairment, due to such symptoms as:
Gross impairment in thought processes; or
communication; persistent delusions or
hallucinations; grossly inappropriate
behavior; persistent danger of hurting
self or others; intermittent inability to
perform activities of daily living
(including maintenance of minimal
personal hygiene); disorientation to time
or place; memory loss for names of close
relatives, own occupation or own name.
If positive symptoms from more than one
of the above categories are identified,
the examiner is requested to identify
those which are most predominate based on
consideration of the entire contemporary
record and to provide an opinion as to
the level of occupational and social
impairment (a through e above) that most
closely reflects the veteran's overall
symptomatology and level of disability
due solely to his service-connected PTSD.
A multi-axial assessment should be
conducted, and a thorough discussion of
Axis IV (psychosocial and environmental
problems) and Axis V (Global Assessment
of Functioning (GAF) score), with an
explanation of the numeric code assigned,
is to be included. The rationale for all
conclusions should be provided.
3. Following completion of the above,
the RO should review the claims folder to
ensure that the requested development has
been completed. In particular, the RO
should review the requested examination
report and required opinion to ensure
that it is responsive to and in complete
compliance with the directives of this
REMAND. If not, the RO should implement
corrective action.
4. The RO should then readjudicate the
issue of entitlement to an evaluation in
excess of 10 percent for PTSD.
If the benefit sought on appeal remains denied, the veteran
and his representative should be furnished a supplemental
statement of the case with regard to the additional
development and given the opportunity to respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration. The Board intimates no
opinion as to the ultimate outcome of this case. The veteran
need take no action unless otherwise notified.
The veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
John E. Ormond, Jr.
Member, Board of Veterans' Appeals